Rules of separation

The judiciary and the legislature seem to be heading for a confrontation to preserve what they consider to be their exclusive domain of power. Such conflicts between the two vital wings of the democratic system are not new to Indian polity. But this time the stand-off appears to have serious dimensions.

The judgments and remarks of the judiciary on the functioning of the executive on a host of issues — reservations for OBCs, the Office of Profit Bill, presidential and gubernatorial clemency powers, sealing and demolition drives in Delhi; creamy layer in SC-ST promotions, etc. — have not elicited positive responses from the executive and legislature.

Both the executive and legislative wings are voicing their concerns against what they see as encroachment. The political class also believes that the judiciary should restrict itself to the interpretation and application of the law.

Lok Sabha Speaker Somnath Chatterjee refused to obey the summons from the apex court on the issue of expulsion of 11 MPs in the cash-on-camera scandal. Defending the rights of the powers of Parliament, he urged the judiciary to remain within the ‘Lakshman Rekha’ of the Constitution.

The court’s decision that the executive should place the parliamentary standing committee report on reservation for OBCs before it has evoked sharp reactions from legislators who feel that such reports must be placed in Parliament as it is the latter that has first proprietary rights to receive and act on the reports.

The issue is expected to ignite more passions as the Supreme Court has started looking into matters pertaining to reservation for OBCs and will make a closer scrutiny of the Ninth Schedule of the Constitution that places certain matters beyond the purview of judicial scrutiny.

The concept of separation of powers among the executive, legislature and judiciary is an essential part of the Constitution.

It is based on the precept that each wing should discharge its duties effectively without getting influenced by the other. At the same time, the Constitution had also enshrined the concept of ‘judicial review’, which undoubtedly gives pre-eminence to the judicial wing.

The judiciary has the powers to review the validity and legality of actions of the three wings, including its own, to ensure that the system functions according to the Constitution. Legislators, however, maintain that the Constitution must reflect the people’s aspirations.

Popular will is supreme. The argument is now over who actually represents that. It is also pointed out that the Ninth Schedule, which makes certain acts non-justiciable, implies the pre-eminence of the legislative wing in matters of enacting the law.

The crux of the problem is that it is the essentially failure of the executive and the political class to live up to the expectations of the common man that has encouraged judicial activism.

From a purist’s point of view, it was certainly not the job of the judiciary to suggest enactment of laws to curb the criminalisation of politics. But it was due to the pro-active role of the judiciary that certain electoral reforms were brought in.

Be it the Office of Profit bill or the cash-on-cam scandal, the public was not concerned as to whether or not the legislature has exclusive rights to make laws and decide its own course of action.

No one was interested in the larger debate about the powers of Parliament vis-à-vis the judiciary. The ordinary citizen sees politicians as a bunch of self-seekers and is quite happy about the judiciary stepping in to set the house in order.

The political establishment has over the years suffered a huge erosion in its credibility and the situation has now reached a stage when there is no difference in the public eye between the judiciary stepping in to prevent a violation of the law and in its trying to lay down the law itself.

Take the issue of clemency. The Constitution has given the powers to the President and the Governors to grant pardons. This was apparently to ensure that the judiciary did not have the last word on meting out punishment.

There could be cases where leniency has to be shown in the larger interest of society and where legal niceties could be suspended. Obviously, clemency is to be invoked only in “the rarest of rare cases”.

The executive may not have liked it but the Supreme Court rightly stepped in and reversed the pardon granted to an offender by the government mainly on political grounds in Andhra Pradesh. One can describe this as judiciary encroaching into the executive’s powers.

But the reality is that the judiciary intervened to stop gross misuse of the provisions by the executive. The propriety of the judicial action can be debated, but the action of the executive in this case was certainly not motivated by noble concerns or the public interest.

The scenario is the same when it comes to the question of illegal constructions in Delhi. Yes, legislators have the right to legislate and make regulations. But why did the legislature allow the executive authority to let illegal constructions to reach such a sorry state that the judiciary had to intervene?

It was the failure of both the legislature and the executive to ensure the enforcement of the law that allowed the courts to intervene in an administrative issue. Not that the political class in Delhi is backing off.

Instead, there have been suggestions that the government must bring out a law to regularise unauthorised constructions and place the law in the Ninth Schedule so that the courts cannot review the matter.

Tensions between the judiciary and the executive-legislative wings are not new, nor is the present round of jousting going to be the last.

The balance of public opinion is generally on the side of the judiciary as it is generally perceived as the crusader against a political establishment acting against public interest.

At the same time, no one can argue that the judiciary should appropriate the roles of the legislative and executive wings. The Ninth Schedule is not the answer to judicial over-activism. A saner system of governance is.